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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
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In the Matter of File No.: EB-10-MA-0048
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Whisler Fleurinor NAL/Acct. No.: 201132600002
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Fort Lauderdale, Florida FRN: 0020655106
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FORFEITURE ORDER
Adopted: October 20, 2011 Released: October 20, 2011
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of five hundred dollars ($500) to Whisler Fleurinor (Mr.
Fleurinor) for willful and repeated violation of section 301 of the
Communications Act of 1934, as amended (Act). The noted violations
involved Mr. Fleurinor's operation of an unlicensed radio transmitter
on the frequency 99.5 MHz from his commercial property in Fort
Lauderdale, Florida.
II. BACKGROUND
2. On March 4, 2011, the Enforcement Bureau's Miami Office (Miami Office)
issued a Notice of Apparent Liability for Forfeiture (NAL) to Mr.
Fleurinor for his operation of an unlicensed radio transmitter without
the requisite Commission authorization. As discussed in detail in the
NAL, agents from the Miami Office determined that Mr. Fleurinor
operated an unlicensed radio station on the frequency 99.5 MHz from
his commercial property on three separate occasions. In view of the
record evidence and the fact that he operated an unlicensed station
after the receipt of two Notices of Unlicensed Operation, the NAL
proposed a forfeiture against Mr. Fleurinor for violation of section
301 of the Act. Mr. Fleurinor submitted a response to the NAL
requesting cancellation of the proposed forfeiture, asserting the
forfeiture "would create an impossible burden for Mr. Fleurinor to
bear or satisfy."
III. DISCUSSION
3. The proposed forfeiture amount in this case was assessed in accordance
with section 503(b) of the Act, section 1.80 of the Commission's rules
("Rules"), and the Forfeiture Policy Statement. In examining Mr.
Fleurinor's response, section 503(b) of the Act requires that the
Commission take into account the nature, circumstances, extent, and
gravity of the violation and, with respect to the violator, the degree
of culpability, any history of prior offenses, ability to pay, and
other such matters as justice may require. As discussed below, we have
considered Mr. Fleurinor's response in light of these statutory
factors, and we reduce the forfeiture to $500 based solely on his
documented inability to pay.
4. As set forth in the NAL, agents from the Miami Office determined that
Mr. Fleurinor operated an unlicensed station on the frequency 99.5 MHz
on March 16, August 24, and August 31, 2010. In his response to the
NAL, Mr. Fleurinor does not deny any of these facts. Accordingly, we
find that Mr. Fleurinor willfully and repeatedly violated section 301
of the Act by operating an unlicensed radio transmitter.
5. With regard to an individual or entity's inability to pay claim, the
Commission has determined that, in general, gross revenues are the
best indicator of an ability to pay a forfeiture. Based on the
financial documents and other materials provided by Mr. Fleurinor, we
find insufficient basis to grant his request for cancellation of the
forfeiture. In this regard, the information provided by Mr. Fleurinor
does not support cancellation of the forfeiture amount, because the
forfeiture amount does not exceed Mr. Fleurinor's average gross
revenues for the years covered by the financial documents. We do,
however, find sufficient basis to reduce the forfeiture to $500 based
on the financial documentation Mr. Fleurinor submitted.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Whisler
Fleurinor IS LIABLE FOR A MONETARY FORFEITURE in the amount of five
hundred dollars ($500) for violations of section 301 of the Act.
7. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the Rules within thirty (30) calendar days of the
release of this Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
enforcement pursuant to section 504(a) of the Act. Payment of the
forfeiture must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment must
include the NAL/Account Number and FRN referenced above. Payment by
check or money order may be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by
wire transfer may be made to ABA Number 021030004, receiving bank
TREAS/NYC, and account number 27000001. For payment by credit card, an
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the NAL/Account number in block number 23A
(call sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). Requests for full payment under an installment
plan should be sent to: Chief Financial Officer - Financial
Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Mr. Fleurinor shall also send electronic
notification on the date said payment is made to SCR-Response@fcc.gov.
8. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail Return Receipt Requested to Whisler
Fleurinor at his address of record and to his attorney, Lewis H.
Goldman, P.C., 45 Dudley Court, Bethesda, MD 20814.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
Whisler Fleurinor, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd
2478 (Enf. Bur. 2011).
Id. A comprehensive recitation of the facts and history of this case can
be found in the NAL and is incorporated herein by reference.
Id. at 2480.
Letter from Lewis H. Goldman, P.C., attorney for Mr. Fleurinor, to Diane
Law-Hsu, Regional Counsel, South Central Region, Enforcement Bureau, dated
August 2, 2011 at 1.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S: 503(b)(2)(E).
NAL at 2478-2479.
See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
See Lancaster Educational Broadcasting Foundation, Forfeiture Order, 24
FCC Rcd 9013, 9015 (Enf. Bur. Investigations & Hearings Div. 2009)
(denying request for cancellation of proposed forfeiture based on
inability to pay claim because licensee's gross revenues exceeded proposed
forfeiture amount).
This forfeiture amount falls within the percentage range that the
Commission has previously found acceptable. See supra note 11. If Mr.
Fleurinor believes that paying this amount still presents financial
difficulties, we note that he could always pursue an installment payment
plan to lessen the immediate impact of the forfeiture.
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80(f)(4).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 11-1743
3
Federal Communications Commission DA 11-1743